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Lawyers who defend mass torts hope to build on momentum they picked up since a federal judge in Texas confirmed their belief that something is rotten in the state of medical screening in these cases. Also, federal prosecutor’s offices in New York and Texas have taken an interest in some of the plaintiffs’ bar’s practices, according to court papers. U.S. District Judge Janis Graham Jack’s order in the silica multidistrict litigation excoriated the silica plaintiffs’ bar for filing 10,000 claims based on mass screeners’ diagnoses-claims generated by lay enterprises and rubber-stamped by doctors who never saw the claimants. She said the claims were “manufactured for money.” In re Silica Products Liability Litigation, MDL docket No. 1553 (S.D. Texas). The day Jack told counsel she was issuing her order, she also said that “the head of the U.S. Attorney’s Office in Corpus Christi” had called her to find out “how he could get discovery in the case” in response to a call that office received from “the Southern District of Manhattan,” according to a transcript of the telephone conference. The key to the silica defendants “cracking” the case is the latitude the judge allowed them in discovery relating to the plaintiffs’ screeners and medical experts in the 111 cases comprising more than 10,000 claims concentrated in her court. The large inventory of claims gave the defendants the opportunity-for the first time-to analyze broader patterns, enabling them to demonstrate to the court widespread abuse in mass-screened silica claims. More to come? More analysis of the same kind in other tort areas is sure to follow. On July 20, the U.S. Chamber of Commerce Institute for Legal Reform unwrapped its “Beta Project,” a database to help identify trends and patterns, such as unsavory connections between doctors, screening companies and plaintiffs’ law firms, as the silica defendants had shown. Linda Kelly, vice president, policy and research for the chamber’s Institute for Legal Reform, said the project-”one very coordinated effort to provide tools to the defense side” in asbestos litigation-has been in the works for the last 18 months. “Judge Jack’s decision in the silica case highlighted a problem we were working on already. We’re lucky we were going public with this project after that happened, because that got a lot of people’s attention,” said Kelly. The chamber also hopes to foster coordinated defense strategies among defense counsel, who are conditioned to look after the rights of their clients as individual companies, Kelly said. “The silica case is providing a more coordinated effort to push back on the asbestos cases. Each little bit of a victory spurs more of the defendants on to defend their cases,” she said, adding that though the project currently focuses on silica and asbestos litigation, there could be broad, long-term applications for it in other mass torts. “No one has seen any abuses in the welding rod litigation, but the elements all seem to be in place,” Kelly claimed. In re Welding Fume Products Liability, MDL docket No. 1535 (N.D. Ohio). The welding rod plaintiffs allege that fumes incident to welding contain manganese and cause manganese poisoning, Parkinsonism and Parkinson’s Disease. John H. Beisner, who heads the class action practice at O’Melveny & Myers and represents defendants in the welding rod multidistrict litigation, said about 30% of the welding rod plaintiffs are “repeat customers” who already had filed claims in the asbestos litigation. Jack noted in her order that the silica defendants had compared about 6,757 silica plaintiffs’ names with names in the trust established for asbestos claims after the Johns-Manville Corp. bankruptcy. They discovered that at least 4,031 of the silica plaintiffs also had made asbestos claims. The judge commented that “a golfer is more likely to hit a hole-in-one than an occupational medicine specialist is to find a single case of both silicosis and asbestosis.” According to Beisner, “it appears that a lot of folks are on attorneys’ Rolodex cards, so that whenever a mass tort comes along they’re invited to participate.” But Robert J. Nelson of San Francisco-based Lieff Cabraser Heimann & Bernstein, who said he represents about 40 welding rod plaintiffs, took umbrage at comments that he said “cut to the very integrity of what one does.” “It can’t possibly be their products that are causing the malady. The best defense is a good offense,” said Nelson, who sits on plaintiffs’ executive committees of both the federal multidistrict litigation and the California coordinated proceeding. He said he sees no value in tarring the entire plaintiffs’ bar with abuses reported in the silica litigation. Welding Product Cases, JCCP No. 4368 (Alameda Co., Calif., Super. Ct.). “The very real problem here is that something associated with welding rods can cause serious, chronic neurological disease. We have no doubt of the claims being brought and the validity of the allegations,” Nelson said, pointing out that the plaintiffs had won favorable rulings so far in the two-year-old federal multidistrict litigation. Carlton Carl, spokesman for the American Trial Lawyers Association, called the chamber’s project “one more example of multimillion-dollar corporations and their insurers spending their ill-gotten gains to create obstacles to justice for the average American.” He said further: “One shouldn’t trust any analysis of evidence by the folks who defended the companies that lied to workers and consumers for 70 years about the dangers of asbestos . . . [and] who thought it violated no ethical or moral standards to intentionally market tobacco products to our kids.” Jack said in her order in the silica multidistrict litigation that the “small cadre” of 12 doctors who never actually saw a single patient rendered diagnoses of 9,083 of them. Those doctors were “financially beholden to lawyers and screening companies rather than to patients.” John H. Martin, second vice president of the Defense Research Institute and a partner at Dallas’ Thompson & Knight, said toxic tort litigation for years has involved cases brought on the basis of diagnoses provided by screeners working for lawyers rather than doctors who actually have known the plaintiffs. “There’s been a tendency on the part of a lot of judges to let juries sort out whose experts to believe,” said Martin, noting that as more challenges brought under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), are sustained by courts, fewer mass screening experts are being allowed to testify.

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